HomeMy WebLinkAboutC-6243(I) - Beacon Bay, 62 - Lease 1989LEASE
THIS LEASE, made and entered into this 13th day. of
November , 19 sq, by and between the CITY OF NEWPORT BEACH, a
chartered municipal corporation, hereinafter "Lessor," and
J. WILLIAM BACKAND MONIQUE T. BACK, TRUSTORS OF THE
BACK TRUST hereinafter "Lessee."
RECITALS
A. Lessor holds title to and is the owner of certain harbor
frontage and tidelands, together with certain uplands abutting
thereon known as Beacon Bay and more particularly described as
Exhibit "1," attached hereto and made a part hereof by this
reference.
B. Carrol B. Beek, Barton Beek, Joseph Allan Beek, Jr., and
Seymour Beek jointly hold a Master Lease to said property, dated
January 9, 1950, which Master Lease expires on December 31, 1987.
C. The "Westerly Portion" of the Beacon Bay property has been
divided into individual lots and subleased for residential
purposes.
D. All of said subleases expire on the same date as the
Master Lease, to -wit: December 31, 1987.
E. Lessor believes it to be in the best interest and welfare
of said Lessor (1) that the portion of Beacon Bay which is
currently leased for residential purposes remain residential in
character, and (2) to enter into new subleases with the sublessees
under the terms, conditions and for the consideration as
hereinafter set forth.
F. It is the judgment of Lessor that the leasing of the
property hereinafter described is consistent with the trust
purposes imposed upon such portions of the leased lands which may
constitute tidelands as authorized by Chapter 74, Statutes of
1978.
G. It is further the judgment of City that in entering into
this Lease in the future, City is acting pursuant to its
proprietary powers.
NOW, THEREFORE, IN CONSIDERATION OF THE FOREGOING RECITALS
AND THE MUTUAL AGREEMENTS SET FORTH BELOW, LESSOR AND LESSEE
HEREBY AGREE AS FOLLOWS:
1. DESCRIPTION OF LEASED PREMISES. Lessor hereby leases, and
Lessee hereby accepts this Lease of the real property described in
Exhibit 112," attached hereto and made a part hereof by this
reference under the terms and conditions as set forth below
("hereinafter the "Leased Land").
2. TERM. Unless terminated sooner as provided herein, the
term of this Lease is for a period commencing on the 1st day of
January, 1988, and ending on the 1st day of July, 2006.
3. BASE RENTAL. As base rental, Lessee agrees to pay to
Lessor the sum of Six Hundred and Sixty -Eight and 40/100
DOLLARS ($ 668.40 )
per month, payable on the 1st day of each month so long as this
Lease remains in effect subject to a base rental adjustment, as
provided in paragraph 4 below. Said rental payment is deemed to
be the fair market value of the Leased Land as an improved
subdivision lot.
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4. SALE, ASSIGNMENT, SUBLEASE. Lessee may sell, assign,
exchange, convey or sublease his leasehold interest or encumber
such interest without a prior written consent of Lessor; provided,
however, that the Lessee, proposed transferee, assignee or
encumbrancer shall:
A. Furnish Lessor with an executed copy of such
assignment, Trust Deed, or other document used to effect such
transfer;
B. Furnish to lessor the express agreement of the
proposed transferee or encumbrance assuming, and agreeing to
perform, all of the obligations under this Lease;
C. Pay to Lessor a transfer fee of $50.00; and
D. Pay to Lessor the adjusted base rental which shall be
the greater of the following:
(1) The base rental as set forth in paragraph 3
above, or
(2) An amount, equal to two and one half percent (2-
1/2%) of the actual sales value of the leasehold estate, including
the improvements thereon, divided by twelve (12) and payable
monthly. The actual sales value shall be the"total value of the
transfer, as established by the Assessor of Orange County or
verified by lessor. The parties to said transaction shall furnish
Lessor with any information regarding the transaction as Lessor
may deem necessary to verify the total value of the transaction.
If said transfer transaction cannot be verified by normal and
accepted methods of verification, Lessor, at its sole discretion,
may cause the leasehold estate and improvements thereon to be
appraised to establish the fair market value of the property,
which value shall be deemed the actual sales value thereof, as of
the date of transfer, and establish thereby the adjusted base
rental. The adjusted base rental shall become effective on the
date of transfer.
The provisions of this subparagraph shall not cause an
adjustment of rentals if:
A. Lessee is assigning his interest in this Lease to a
Trustee under a Deed of Trust for the benefit of the lender as
provided in paragraph 5, below; or
B. The transfer is caused by the death of a spouse and
the full interest of the deceased spouse is transferred to the
surviving spouse.
5. ENCUMBRANCES. If the Lessee assigns his interest in this
Lease to a Trustee under a Deed of Trust (hereinafter called
"Trust Deed") for the benefit of the lender hereinafter called
"Encumbrancer"), such encumbrance shall be upon and subject to the
following covenants and conditions:
A. Said Trust Deed and all rights acquired thereunder
shall be subject to each and all of the covenants, conditions and
restrictions set forth in this Lease and to all rights and
interest of the Lessor hereunder, except as herein otherwise
provided.
B. In the event of any conflict between the provisions
of this Lease and the provisions of any such Trust Deed, the
provisions of this Lease shall control.
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C. Any Encumbrancer which is an established bank,
savings and loan association or insurance company, and is the
purchaser at a foreclosure sale, or is an assignee under an
assignment in lieu of foreclosure shall be liable to perform the
obligations of the Lessee under the Lease only so long as such
Encumbrancer holds title to the leasehold.
D. Lessee shall furnish to Lessor a complete copy of the
Trust Deed and Note secured thereby, together with the name and
address of the holder thereof.
E. Upon and immediately after the recording of the Trust
Deed, Lessee, at Lessee's expense, shall cause to be recorded in
the office of the Recorder of Orange County, California, a written
request executed and acknowledged by lessor for a copy of any
notice of default and of any notice of sale under the Trust Deed
as provided by the statutes of the State of California relating
thereto.
F. Lessee agrees that it will not terminate this Lease
because of any default or breach hereunder on the part of Lessee
if the Encumbrancer under such Trust Deed, within ninety (90) days
after service of written notice on the Encumbrancer by Lessor of
its intention to terminate this Lease for such default or breach,
shall:
(1) Cure such default or breach if the same can be
cured by the payment or expenditure of money provided to be paid
under the terms of this Lease; provided, however, that for the
purpose of the foregoing, Encumbrancer shall not be required to
pay money to cure the bankruptcy or insolvency of Lessee or to
satisfy Lessee's obligations under paragraph 12 hereof,
"Indemnification," or
(2) If such default or breach is not so curable,
cause the Trustee under the Trust Deed to commence and thereafter
to diligently pursue to completion steps and proceedings for
judicial foreclosure, the exercise of the power of sale under and
pursuant to the Trust Deed in the manner provided by law, or
accept from the Lessee an assignment in lieu of foreclosure; and
(3) Keep and perform all of the covenants and
conditions of this Lease requiring the payment or expenditure of
money by Lessee until such time as said leasehold shall be sold
upon foreclosure pursuant to the Trust Deed, be released or
reconveyed thereunder, sold upon judicial foreclosure or
transferred by Deed in lieu of foreclosure; provided, however, if
the holder of the Trust Deed shall fail to refuse to comply with
any and all of the conditions of this paragraph, then and
thereupon Lessor shall be released from the covenant of
forbearance herein contained.
6. USE. The Leased Land shall be used solely for
residential purposes and any appurtenant uses associated
therewith. Lessee agrees to comply with all laws, regulations
and ordinances of Lessor, the County and State affecting the
Leased Land and any improvements located thereon.
7. TAXES AND UTILITIES. It is understood by Lessor and
Lessee that this Lease may give rise to a possessory interest tax
obligation. Lessee shall pay, before delinquent, all utility
charges and any general and special taxes, assessments or other
governmental charges, if any, which may be levied on the Leased
Land, including any improvements located thereon or associated
therewith, or any possessory interest therein arising out of or
based upon the leasehold interest throughout the term hereof.
Satisfactory evidence of such payments shall be made available to
Lessor upon demand. Any lien for unpaid utilities, taxes,
assessments or charges shall not attach to the leasehold interest
but only to improvements located thereon.
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8. USE AND MAINTENANCE OF COMMON AREA. Lessee shall
have the right to use the streets, beaches, walkways, tennis
courts, docks, piers, and common landscaped areas in Beacon Bay
which shall be leased to the Beacon Bay Community Association by
the City, in consideration of the maintenance thereof by such
Association and fair market value rent to be paid by individual
lessees. Lessor shall not be obligated to make any repairs,
alterations or improvements in or to, or upon or adjoining the
Leased Land or any structure or other improvement that may be
constructed or installed therein, but Lessee shall, at all times
during the terms of this Lease and at its sole cost and expense,
keep and maintain all buildings, structures, and other
improvements on the Leased Land in good order and repair, and the
whole of the Leased Land and all improvements thereto free of
weeds and rubbish, and in a clean, sanitary and neat condition.
9. COMMUNITY ASSOCIATION. Lessee agrees to become and
during the term of this Lease remain a member in good standing of
the Beacon Bay Community Association, and to abide by the Articles
of Incorporation, Bylaws and rules and regulations of the
Association, now or hereafter existing, and to pay to said
Association before delinquency all dues, fees, assessments and
other charges from time to time duly levied or assessed in
furtherance of the Association's community purpose.
10. COVENANTS, CONDITIONS AND RESTRICTIONS. Lessee
agrees to abide and be bound by all covenants, conditions,
restrictions and reservations as contained in Exhibit 113,"
attached hereto and made a part hereof by this reference. Said
covenants, conditions and restrictions shall run with the Leased
Land and shall be binding on Lessee and Lessee's successors in
interest.
11. INDEMNIFICATION. Lessee agrees that he will hold and
save Lessor, its officers, agents and employees harmless from any
and all claims or demands of any kind or nature whatsoever arising
out of, or incident to, the use and occupancy of the Leased Land,
and to indemnify Lessor for any cost, liability or expense caused
by or arising out of any injury or death of persons or damage to
property which may occur upon or about the Leased Land or caused
by or arising out of any activities or omission of Lessee, his
agents, employees, licensees, and/or invitees, including, without
limitation, injury or death of Lessee, his agents, employees,
licensees and invitees and damage to his property or Lessee's
property; except for any damage or injury or any kind arising out
of the negligence of Lessor, its agents or employees.
12. NON-COMPLIANCE AND TERMINATION Off' LEASE. Time and
each of the terms, covenants and conditions hereof are expressly
made the essence of this Lease.
If Lessee shall fail to comply with any of the terms,
covenants or conditions of this Lease, including the payment of
rental herein reserved, at the time and in the amount herein
required, and shall fail to remedy such default within sixty (60)
days and thereafter comply with each and every term of this Lease,
or if a Lessee shall abandon or vacate the Leased Land, Lessor
may, at its option, and without further notice or demand,
terminate this Lease and enter upon the Leased Land and take
possession thereof, and remove any and all persons therefrom with
or without process of law.
Lessor may elect to terminate this Lease for any
event of default or breach hereof or of the covenants, conditions
and restrictions contained in Exhibit 113." Should Lessor elect to
terminate, it may recover from Lessee all damages incurred by
Lessor by reason of such breach, including, without limitation,
the cost of recovering the Leased land, and the worth at the time
of such termination of the excess, if any, of the amount of unpaid
rent and unpaid charges reserved under this Lease over the amount
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of the rental loss which lessee proves could be reasonably
avoided, for the remainder of the term of this Lease. Such amount
shall be immediately due and payable from Lessee to Lessor,
together with interest at the rate of 10% per annum from the date
owing until paid. The remedies of Lessor specified herein are in
addition to and cumulative of any remedies provided Lessor by
statute, including the remedies provided in California Civil Code
Sections 1951.2, et sea.
13. SURRENDER OF POSSESSION UPON EXPIRATION OR
TERMINATION. Upon the expiration or termination of this Lease,
Lessee agrees to peaceably deliver possession of the Leased Land
to Lessor and unconditionally agrees to vacate the Leased Land
without contest, legal or otherwise. Lessee further expressly
agrees to waive any and all legal rights it may have to contest
vacating the Leased Land and further agrees to release Lessor from
any and all claims it may have of whatever nature. Lessee further
agrees to waive any relocation assistance or any other assistance
from Lessor resulting from vacating the Leased Land. Lessee shall
have the right prior to and for a period of ninety (90) days after
the expiration of this Lease to remove any buildings or
improvements appurtenant thereto from the Leased Land, except that
all streets, walkways, common area landscaping, docks, piers, and
any other installation constructed or installed in the common
areas, shall be the property of Lessor.
14. EMINENT DOMAIN.
A. Definitions of Terms. The term "total taking"
as used in this paragraph means the taking of the entire Leased
Land under the power of eminent domain or the taking of so much of
said Land as to prevent or substantially impair the use thereof by
Lessee for the uses and purposes hereinabove provided.
The term "partial taking" means the taking of a
portion only of the Leased Land which does not constitute a total
taking as defined above.
The term "taking" shall include a voluntary
conveyance by Lessor to an agency, authority or public utility
under threat of a taking under the power of eminent domain in lieu
of formal proceedings.
The term 'date of taking" shall be the date upon
which title to the Leased Land or portion thereof passes to and
vests in the condemnor.
The term "Leased Land" means the real property
belonging to Lessor, together with any and all improvements placed
thereon by Lessor or to which lessor has gained title.
B. Effect of Taking. If, during the term hereof,
there shall be a total taking or partial taking under the power of
eminent domain, then the leasehold estate of the Lessee in and to
the Leased Land or the portion thereof taken shall cease and
terminate, as of the date of taking of said Land. If this Lease
is so terminated in whole or in part, all, rentals and other
charges payable by Lessee to Lessor hereunder and attributable to
the Leased Land or portion thereof taken shall be paid by Lessee
up to the date of taking by the condemnor, and the parties shall
thereupon be released from all further liability in relation
thereto.
C. Allocation of Award - Total Taking. All
compensation and damages awarded for the total taking of the
Leased Land and Lessee's leasehold interest therein shall be
allocated as follows:
(1) The Lessor shall be entitled to an amount
equal to the sum of the following:
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(a) The fair market value of the Leased
Land as improved (exclusive of the dwelling and appurtenances to
such dwelling) as of the date of taking, discounted by multiplying
such fair market value by the factor for the present worth of
$1.00 at 9% per annum compound interest for the number of years
remaining from the date of taking to the date of the expiration of
the term of this Lease; and
(b) The present worth of rents due during
the period from the date of taking to the date of the expiration
of the term of this Lease, computed by multiplying the annual rent
then payable by the factor for the present worth of $1.00 per
annum at 12% per annum compound interest (Inwood Coefficient) for
the number of years in such period.
(2) The Lessee shall be entitled to the amount
remaining of the total award after deducting therefrom the sums to
be paid to Lessor as hereinafter provided.
D. Allocation of Award - Partial Taking. All
compensation and damages awarded for the taking of a portion of
the Leased Land shall be allocated and divided as follows:
(1) The Lessor shall be entitled to an amount
equal to the sum of the following:
(a) The proportionate reduction of the
fair market value of the Leased Land as improved (exclusive of the
dwelling and appurtenances to such dwelling) as of the date of
taking, discounted by multiplying such proportionate reduction in
fair market value by the factor for the present worth of $1.00 at
9% per annum compound interest for the number of years remaining
from the date of taking to the date of expiration of the term of
this Lease; and
(b) The present worth of the amount by
which the rent is reduced computed by multiplying the amount by
which the annual rent is reduced by the factor for the present
worth of $1.00 perm annum at 12% per annum compound interest
(Inwood Coefficient) for the number of years remaining from the
date of taking to the date of expiration of the term of this
Lease.
(2) The Lessee shall be entitled to the amount
remaining of the total award after deducting therefrom the sums to
be paid to Lessor as hereinafter provided.
E. Reduction of Rent on Partial Taking. In the event of
a partial taking, the rent payable by Lessee hereunder shall be
adjusted from the date of taking or to the date of the expiration
of the term of this Lease. Such rental adjustment will be made by
reducing the basic rental payable by Lessee in the ratio that the
fair market rental value of the Leased Land at the date of taking
bears to the fair market value of the Leased Land immediately
thereafter.
15. ATTORNEYS' FEES. Should either Lessor or Lessee be
required to employ counsel to enforce the terms, conditions and
covenants of this Lease Agreement, the prevailing party shall
recover all reasonable attorneys' fees (and court costs if
applicable) incurred therein, whether or not court proceedings
were commenced.
16. REMEDIES CUMULATIVE. The rights, powers, elections and
remedies of the Lessor contained in this Lease shall be
constructed as cumulative and no one of them shall be considered
exclusive of the other or exclusive of any rights or remedies
allowed by law, and the exercise of one or more rights, powers,
elections or remedies shall not impair or be deemed a waiver of
Lessor's rights to exercise any other.
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17. NO WAIVER. No delay or omission of the Lessor to exercise
any right or power arising from any omission, neglect or default
of the Lessee shall impair any such right or power or shall be
construed as a waiver of any such omission, neglect or default on
the part of the Lessor or any acquiescence therein.
No waiver of any breach of any of the terms, covenants,
agreements, restrictions or conditions of this Lease shall be
construed as a waiver of any succeeding breach of the same or of
any of the terms, covenants, agreements, restrictions or
conditions of this Lease.
18. COMPLIANCE WITH LAWS. Lessee covenants and agrees to
comply with all rules, regulations, statutes, ordinances and laws
of the State of California, County of Orange, City of Newport
Beach, or any other governmental body or agency having lawful
jurisdiction over the Leased Land.
19. NOTICES. It is mutually agreed that any notice or notices
provided for by this Lease or by law, to be given or served by
Lessee, may be given or served by mail, registered or certified,
with postage prepaid, on the City of Newport Beach, addressed to
the Mayor, City Manager, or City Clerk, 3300 Newport Boulevard,
Newport Beach, California 92663, or at such other address as may
be hereafter furnished to Lessee in writing. If notice is
intended to be served by Lessor on Lessee, it may be served
either:
A. By delivering a copy to the Lessee personally, or
B. If he be absent from the Leased Land by leaving a
copy with some person of suitable age and discretion who may be
occupying the Leased Land; or
C. If no one can be found, then by affixing a copy of
the notice in a conspicuous place on the property or also sending
a copy through the mail addressed to the Lessee.
Such service upon lessor or Lessee shall be deemed
complete at the expiration of forty-eight (48) hours from and
after the deposit in the United States mail of such notice, demand
or communication.
20. HOLDING OVER. This Lease shall terminate and become null
and void without further notice upon the expiration of said term.
Any holding over shall not constitute a renewal hereof, but the
tenancy shall thereafter be on a month-to-month basis and
otherwise on the same terms and conditions as herein set forth.
21. MISCELLANEOUS.
Inurement. Each and all of the covenants, conditions and
agreements herein contained shall, in accordance with the context,
inure to the benefit of Lessor and apply to and bind Lessee, his
respective heirs, legatees, devisees, executors, administrators,
successors, assigns, licensees, permittees, or any person who may
come into possession or occupancy of said Leased Land or any part
thereof in any manner whatsoever. Nothing in this paragraph shall
in any way alter the provisions herein contained against
assignment or subletting.
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IN WITNESS WHEREOF, the parties have caused this Lease to
be executed on the date first above written.
CITY OF NEWPORT BEACH, LESSOR
MMOR
ATTEST:
CITY CLERK
APPROVED AS TO FORM:
J. WILLIAM BACK, TRUSTOR
LESSEE
d*aCITY kTTORNE)( MMIQeE T. ACK, TRUSTOR
LESSEE
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